Hubbard v. Delta Sanitation of Miss.

• Decision Date: 26 April 2011
• Docket Number: No. 2010–CA–00045–COA.,2010–CA–00045–COA.
• Parties: Charles HUBBARD, Appellantv.DELTA SANITATION OF MISSISSIPPI, Appellee.
• Court: Mississippi Court of Appeals

64 So.3d 547

Charles HUBBARD, Appellant

v.DELTA SANITATION OF MISSISSIPPI, Appellee.

No. 2010–CA–00045–COA.

Court of Appeals of Mississippi.

April 26, 2011.

James Kenneth Wetzel, Gulfport, attorney for appellant.Robert W. Wilkinson, Joshua Wesley Danos, Pascagoula, attorneys for appellee.Before IRVING, P.J., MYERS and MAXWELL, JJ.MYERS, J., for the Court:

¶ 1. Charles Hubbard sued Delta Sanitation of Mississippi, LLC in the Harrison County Circuit Court for injuries sustained in an automobile accident. A jury returned a verdict in favor of Hubbard for $3,000 in damages. The circuit court awarded costs to Delta in the amount of $7,012.03 based on the court's finding, under Rule 68 of the Mississippi Rules of Civil Procedure, that the jury's damage award was less favorable than the settlement offer Delta had proposed to Hubbard prior to trial. Hubbard appeals asserting the following three issues, which we restate for clarity:

I. The trial court erred in failing to impose an additur, pursuant to Mississippi Code section 11–1–55, as the jury verdict in the amount of $3,000 was contrary to the overwhelming weight of the evidence.

II. The trial court erred in a pretrial ruling which denied Hubbard the fundamental right to present medical evidence of his prior neurological condition (multiple sclerosis), thus, denying Hubbard a fair and impartial trial.

III. Delta was not entitled to $7,012.03 in costs under Rule 68.

¶ 2. We affirm the trial court's judgment on issues one and two. We reverse, however, on issue three.

FACTS

¶ 3. On December 1, 2006, Hubbard's Dodge Ram pickup truck was hit from behind by a Mack truck, owned by Delta. The accident occurred while Hubbard was sitting in the turning lane at the intersection of Highway 90 and Lorraine Road in Gulfport, Mississippi. According to Hubbard, the impact pushed his truck beyond the white line where his truck was stopped for a distance of approximately the length of his vehicle. Hubbard said that during the impact he felt his body being pushed forward and then back against the driver's seat. Immediately following the accident, Hubbard spoke with Delta's driver, who Hubbard said told him that he was not able to stop his truck in time.

¶ 4. Hubbard described Delta's truck as a larger size dump truck, which was loaded with concrete slabs. Hubbard described his Dodge as a “heavy-duty pickup truck” which sits on a “heavy-duty frame” and is fitted with a “heavy-duty bumper.” Photographs of Hubbard's bumper introduced into evidence showed indentations on the Dodge's bumper, which Hubbard said were from the bolts on the Mack truck's bumper.

¶ 5. Hubbard, a senior chemist with the Southern Company, remained at the scene of the accident for approximately twenty minutes. He spoke to Officer Kevin Jackson, of the Gulfport Police Department, who wrote the accident report, and he then drove to an area plant where he was working for Southern Company. Hubbard testified that when he arrived at the plant, he was still suffering a dull ache in his neck and back. Hubbard said the pain did not get worse until the next two to three days, at which time he began experiencing a linear progression of pain in both areas.

¶ 6. Hubbard saw his general physician, Dr. Paul Matherne, on December 22, 2006. He recalled telling Dr. Matherne that his neck was bothering him as well as his lower back. Dr. Matherne ordered x-rays taken and then recommended that Hubbard be evaluated by orthopedic surgeon, Dr. Eric Graham.

¶ 7. According to Hubbard, by the time he first saw Dr. Graham in February 2007, the pain in his neck and back had progressed and was getting worse each day. Hubbard described the pain as radiating from his neck down through his arms and into his hands. Hubbard testified that as he continued under Dr. Graham's care he began losing strength in his arms, and it was then that Dr. Graham recommended cervical surgery. Hubbard underwent surgery in April 2008. Hubbard testified that in the calendar year 2006, prior to the date of the accident, he never had any radicular pain or weakness and had no similar symptoms of that sort prior to the December 1 accident.

¶ 8. Hubbard testified that the total medical bills incurred from the surgery performed by Dr. Graham and the related treatment he had leading up to and after his surgery was $138,294.15. He testified that he also had out-of-pocket expenses for mileage of $163.18, and he incurred loss wages as a result of his injury and subsequent surgery in the amount of $14,074.48. The cost to have his truck repaired, which consisted of using after-market parts, totaled $645.21.

¶ 9. In addition to Hubbard's testimony, the jury heard from Hubbard's wife, Denise Hubbard, and from Dr. Graham, via a video deposition taken of Dr. Graham prior to trial. Denise testified to the effects the alleged injuries had on Hubbard's lifestyle. Dr. Graham testified to the treatment he provided Hubbard.

¶ 10. Dr. Graham stated that he first began treating Hubbard in July 2004 when Hubbard was sent to him by a colleague for evaluation of Hubbard's back and legs. At that time, Dr. Graham diagnosed Hubbard with “L 4–5 spondylolisthesis,” which basically means an “unstable segment” in the lower back. Dr. Graham explained that spondylolisthesis is a degenerative condition created by arthritis, in which “the spine begins to slip off itself.” As a result of this condition, nerve roots tend to get pinched between the bone and the disc as it slides forward. Dr. Graham testified that he prescribed physical therapy and a trial of epidurals—treatment which Hubbard had carried out for several years.

¶ 11. Dr. Graham said Hubbard did not return to his office until February 2007. At that time, Hubbard told him that he had been hit from behind by a dump truck, and he complained of worsening back and leg pain as well as neck and arm pain. Dr. Graham said that Dr. Matherne had previously put Hubbard through physical therapy following the December 2006 accident, which failed to give Hubbard relief. Dr. Graham also testified that when he saw Hubbard in 2004, there were no complaints of neck pain.

¶ 12. According to Dr. Graham, Hubbard perfectly described the symptoms of “radiculopathy” in his neck and in his left arm. Dr. Graham explained that radiculopathy was a pain that travels down the arm in a certain fashion that “follows a dermatome,” and in this case it was “following the C–6 dermatome.” Dr. Graham saw Hubbard again in March 2007, at which time Hubbard had an MRI done. The MRI showed “a left sided disc complex at C4–5 and C5–6.” Dr. Graham said that Hubbard had a herniation of those discs that were impinging upon the nerves in Hubbard's spinal canal and that this was causing the pain sensation or radiation into Hubbard's upper extremities.

¶ 13. Dr. Graham discussed conservative treatment measures with Hubbard, which included continuing the epidurals. Because Hubbard had also recently been diagnosed with an unrelated neurological disorder, ¹ Dr. Graham advised Hubbard that he would need to clear surgery with Dr. Terry Millette, Hubbard's neurologist.

¶ 14. Dr. Graham did not hear from Hubbard again until March 2008, when Hubbard began experiencing motor deficits resulting in “weakness to wrist extension and bicep function.” Dr. Graham explained to Hubbard that cervical and lumbar surgeries offer some chances for improvement. Dr. Graham indicated that he recommended cervical surgery in Hubbard's case because of the weakness Hubbard was experiencing and because the longer one lives with pressure sitting on the motor nerve, the more likely it is to become a permanent fixture.

¶ 15. Dr. Graham consulted with Dr. Millette, who said that surgery was neurologically acceptable for Hubbard. Dr. Graham then performed a two-level “anterior cervical discectomy and fusion at C–4 and C–5.” Dr. Graham testified that following surgery, Hubbard was ninety-five percent better than before the procedure, and after additional physical therapy and other conservative measures, he placed Hubbard at maximum medical improvement by October 2008. Dr. Graham added that based on the American Medical Association's guidelines of permanent impairment, Hubbard had a category-four impairment, which he said results anytime you “resort to a fusion.” He said that because there were two levels involved in the procedure, Hubbard had a twenty-six percent permanent impairment to the body as a whole.

¶ 16. Dr. Graham testified that he believed, based upon a reasonable degree of medical probability, the December 2006 accident was a contributing cause for Hubbard's neck injury (herniated disc) and resulting surgery.

¶ 17. Delta presented two witnesses in its case-in-chief, Lloyd David Walker, the driver of the Mack truck, and Dr. Lennon Bowen, a neurologist, retained by Delta to review Hubbard's medical records.

¶ 18. Walker testified that prior to the accident, he and Hubbard were both in the turning lane at the Lorraine Road/Highway 90 intersection. The traffic light at the intersection had turned solid green, not a protected arrow green, so both vehicles proceeded forward. Walker said that Hubbard stopped his vehicle and that he, Walker, was unable to stop quick enough, and he rear-ended Hubbard's vehicle. Walker said his vehicle struck Hubbard's vehicle at approximately five miles per hour. Walker remembered seeing a dent in Hubbard's bumper following the accident and that it looked as if a bolt, which holds a “cowcatcher-type bumper” onto Delta's truck, had hit Hubbard's bumper and made an indentation. Walker described Delta's vehicle as a 2006 Mack truck, which had a “roll-off 20–yard container” located on the bed of the tractor which weighed approximately 24,000 to 26,000 pounds.

¶ 19. Dr. Bowen testified that in his opinion, Hubbard's alleged injuries in the case pre-existed the December 2006 accident. Based upon Dr. Bowen's review of Hubbard's medical records and imaging records, Hubbard...